Justice Kennedy: the Once and Future Swing Vote

Excellent on speech, generally good but frustrating on race and federal power, bad on statutory interpretation, and ugly on everything else, Kennedy is a sui generis enigma at the heart of the modern Supreme Court.
November 13, 2016 • Commentary
This article appeared in Medium on November 13, 2016.

The biggest winner from the election may be Justice Anthony Kennedy. With Merrick Garland’s nomination to fill the vacant Supreme Court seat dead and President‐​elect Trump expected to nominate a conservative, Kennedy will almost certainly regain his customary status as the Court’s swing vote.

“The cases swing, I don’t,” Kennedy protested during an appearance last year at Harvard Law School. Fair enough: however much scholars and pundits pull their hair out trying to understand Justice Kennedy, it’s not really opportunism or flip‐​flopping that drives them crazy. That might have described his predecessor as the court’s “swing justice,” Sandra Day O’Connor, the former state legislator, but it’s hard to tar Kennedy with that brush: inscrutability doesn’t necessarily mean political calculation.

Still, anyone with even a passing interest in the Supreme Court knows that this soft‐​spoken lawyer from Sacramento provides the deciding vote in all the close rulings that rile the nation. In those cases that break down on “ideological” lines, all eyes are on Justice Kennedy. On abortion, affirmative action, Obamacare’s contraceptive mandate, voting rights, and immigration—that was just this past term!—his views become the law of the land. The statistics bear this out: In every term but two since Samuel Alito replaced O’Connor a decade ago, Kennedy was the “winningest” justice, typically in the majority over 90 percent of the time.

But what does this mean for understanding Kennedy’s approach? Is he simply a “moderate” who agrees with conservatives on some issues and progressives on others? Or perhaps he’s a libertarian, which in this context might amount to the same thing? Kennedy has agreed with the legal positions of the libertarian Cato Institute more than any other justice.

In a sense, these labeling questions are the wrong ones to ask. By definition the jurist at the “center” of any particular court will split the difference and wind up prevailing more than anyone else. Such simplifications don’t say anything about Kennedy’s thought process, predict his vote in future cases, or instruct on how best to appeal to him. Because lord knows the Supreme Court bar tries to do that, filing “Kennedy briefs” that cite his greatest hits and otherwise try to activate the justice’s affinity sensors. Take the brief that superlawyers Ted Olson and David Boies—rivals in Bush v. Gore (2000) but comrades in the fight for gay marriage—wrote in Hollingsworth v. Perry(2013), whose introduction focuses on dignity and personal autonomy, as well as “love, commitment, and intimacy,” all buzzwords in the Kennedy lexicon.

The “Kennedy Court”?

In 2009, two political scientists coincidentally published books on Kennedy that remain the most detailed exegeses of his legal philosophy. Frank Colucci of Purdue University‐​Calumet looked at all of the justice’s public writings, including materials beyond legal opinions, to produce a readable analysis called Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty. Colucci’s thesis is that Kennedy strives to interpret constitutional text in a way that properly respects the liberty that is its highest value, trying to reconcile the Founders’ intent with contemporary values. This understanding, and the book’s title, echoes Kennedy’s explication at his 1987 confirmation hearing of the judicial role “to insure that the word liberty in the Constitution is given its full and necessary meaning, consistent with the purposes of the document as we understand it.”

Helen Knowles of SUNY‐​Oswego took a less sweeping approach, while trying to prove a narrower point: at least in some key areas of law, Kennedy is “modestly libertarian.” In The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, Knowles argues that Kennedy’s “requirement that governmental actions pass far more stringent tests when they impinge upon liberty in ways that demean the individual, negatively affect a person’s dignity, diminish personal responsibility, or treat people in a particular way because of their race is entirely consistent with the tenets of libertarian thought.” Still, she acknowledges that the justice doesn’t “subscribe[] to a jurisprudence that is heavily influenced by political theory,” agreeing with Colucci that his methods seem to be at the intersection of originalism and living constitutionalism.

While exhaustive and nuanced, and recommended reading, these books are still unsatisfying precisely because Kennedy’s rulings defy categorization into standard judicial methodologies (originalism, textualism, purposivism) or modes (restraint, pragmatism, engagement). It’s strik­ing that the leading books about this man who has so long played the central role in our legal world were written by assistant professors in small political‐​science departments, rather than top law professors or legal jour­nalists at elite publications. Maybe the subject matter is just too frustrating to craft into an easy narrative.

Yet Kennedy famously wrestles with legal doctrine and tries to maintain internal consistency. Just because someone’s body of work is unconventional doesn’t mean it’s incoherent or unimportant.

In June 2012, as the nation awaited Supreme Court rulings on Obamacare and gay marriage, Time put Kennedy on its cover with the screaming‐​caps headline, “The Decider.” In that cover story, Ninth Circuit Judge Alex Kozinski, who clerked for Kennedy and now heads his clerkship‐​screening committee, is described as explaining that “Kennedy’s agonized thought process is a sign of open‐​mindedness and empathy, not indecision.” “His way of making up his mind in tough cases frequently was for him to try out an idea for size, like trying on a hat,” Kozinski said in his own colorful style. “Wearing it for a day, saying, ‘Well, maybe I don’t look so good in a Stetson. I think I’ll try a sombrero instead.’”

Regardless of the correct headgear, perhaps court watchers are overdoing it in giving all their attention to this Hamlet on the Hill, too hasty in labeling this the “Kennedy Court.” After all, it was John Roberts who provided the deciding vote to save Obamacare in 2012 and again in 2015, and it was Roberts who would delay the court’s ruling on gay marriage by finding a procedural way to dismiss Perry. And the chief justice is the face of the politicized voting‐​rights case Shelby County v. Holder (2014). More tellingly, while Kennedy wrote the opinion in arguably the most controversial case of the last two decades, Citizens United v. FEC (2010), his vote there was never in any doubt: It’s Roberts who dictates how far the court goes on campaign finance and it was Roberts’s concurrence regarding stare decisis—evaluating when it’s appropriate to overturn precedent—that set the tone for the ruling.

Nevertheless, take away the two Obamacare cases and Roberts wouldn’t really be in this conversation—not because his brand of minimalism and deference hasn’t put a stamp on the court or because he doesn’t write other important opinions, but because nobody can accuse Roberts of being generally “moderate.” Kennedy, on the other hands, abides in the middle in a way that more often than not shapes the court’s direction. Since the court’s current roster was set by Justice Kagan’s arrival in 2010, Kennedy has been on the winning side of 84 percent of cases that have split 5–4—while his colleagues are clustered between 45 and 61 percent.

As SCOTUSblog founder and frequent Supreme Court advocate Tom Goldstein put it, “it’s Justice Kennedy’s world and we just live in it.” So let’s look at the areas of law where Anthony Kennedy has made his mark—free speech, gay rights, race, government power, and abortion—to glean his overall approach.

Defender of Free Speech

While Justice Kennedy is no free‐​speech absolutist like Justice Hugo Black, he more than anyone else has no tolerance for content‐​based restrictions. According to a study by First Amendment scholar Eugene Volokh, in the latter half of the Rehnquist Court, Kennedy took the pro‐​speech position three‐​quarters of the time, by far the most. (Thomas and Souter were the next “best” at about 60 percent.) But if jurists as diverse as Kennedy, Thomas, and Souter are doctrinal lodestars, can the underlying constitutional provision be described as coherent? Actually, yes, says the libertarian éminence grise, Richard Epstein, in his seminal article “Property, Speech, and the Politics of Distrust.” Kennedy’s jurisprudence here aligns with three major arguments against content‐​based speech restrictions: (1) anti-paternalism—the government should not be deciding which views are harmful; (2) the protection of individual liberty and autonomy by preventing the government from “distorting” the public discourse; and (3) efforts at content‐​based speech restriction are often driven by suspicious government motives.

In case after free‐​speech case, Kennedy shows the importance of tolerance in the free market of ideas. In Texas v. Johnson (1989), the flag‐​burning case, he concurred to say that “sometimes we must make decisions we do not like.” In Simon & Schuster v. Crime Victims Board (1991), he concurred in striking down a New York law designed to prevent criminals from profiting from the publication of their memoirs by noting that “the sole question is, or ought to be, whether the restriction is in fact content based.” In Hill v. Colorado (2000), he dissented from a six‐​justice majority that upheld a 100‐​foot abortion‐​clinic buffer zone, writing that the rule was purely content‐​based and that providing women with information about abortion “makes a fundamental contribution to their ability to responsibly exercise their liberty.” (In an earlier buffer‐​zone case, Madsen v. Women’s Health Center (1994), Kennedy had joined a similar dissent by Justice Scalia, and recently in McCullen v. Coakley (2014), he joined Chief Justice Roberts’s majority opinion along the same lines.)

In Austin v. Michigan Chamber of Commerce (1990), Kennedy dissented from an anomalous ruling that for the first and only time upheld a campaign‐​finance restriction on a basis other than the interest in preventing quid pro quocorruption. Twenty years later, of course, he would have the opportunity to make that dissenting view into the court’s holding. “If the First Amendment has any force,” he wrote in Citizens United, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Kennedy has taken consistently similar positions in other political‐​speech cases such as Davis v. FEC (2008), Arizona Free Enterprise PAC v. Bennett(2011), and McCutcheon v. FEC (2014). He’s also voted to strike down laws restricting campaign solicitations by judicial candidates, as well as those targeting commercial speech, animal “crush” videos, violent videogames, funeral protests, and false claims of military awards.

“The First Gay Justice”

As important as Kennedy’s contributions are to the First Amendment, he is now most identified with 2015’s landmark ruling on gay marriage. Indeed, Obergefell v. Hodges was the fourth case involving sexual orientation in which Kennedy not only voted to strike down a restriction, but wrote the opinion. In Romer v. Evans (1996), where the court ruled against a Colorado constitutional amendment that prohibited antidiscrimination laws regarding sexual orientation, Kennedy began his opinion with a quote from Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896)—intimating that sexual minorities are no less entitled to equality than racial ones.

In Lawrence v. Texas (2003), Kennedy led the charge in striking down a Texas anti‐​sodomy law, a result he found so obvious that he wrote the opinion in one weekend. Professor Randy Barnett—the intellectual godfather behind the constitutional challenge to the individual mandate—called LawrenceKennedy’s “libertarian revolution” because the opinion was grounded in “personal liberty” rather than “privacy.” But other libertarians and originalists were certainly displeased that he grounded this promising analysis in the tired substantive‐​due‐​process rubric.

Alas Kennedy’s opinions in United States v. Windsor (2012)—which struck down the part of the Defense of Marriage Act that denied federal benefits to lawfully married same‐​sex couples—and Obergefell were even more of a doctrinal mess. Windsor combined elements of federalism and equal protection to ultimately find that DOMA violated the Fifth Amendment’s due process clause by depriving married couples of the “dignity and protection” that some states had given them. In Obergefell, meanwhile, what to my mind should’ve been an easy case about the propriety of certain marriage‐​licensing schemes, instead became a purple disquisition on . . . I’m not sure what. Kennedy tried to write for the ages, but rather than making an epochal statement about the equality of gays and lesbians, he produced a meditation on how the Constitution protects “a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” The rule of Obergefell seems to be that you take a scoop of due process clause and a cup of equal protection, wrap them in some dignity, and away you go.

That’s not law. For one thing, the due process clause should have nothing to do with this case. The right to “due process of law” means that the government can’t take away your life, liberty, or property for no good reason. It’s the equal protection clause that says the government can’t treat people differently for no good reason. While the clauses can overlap—to be discriminated against for no good reason can be a sort of arbitrary state action—they often don’t, because the discrimination might concern something that’s not life, liberty, or property.

Such is the case here: there’s no natural right to the state recognition of marriage. Marriage—the civil institution, not the religious rite—is a kind of government benefit. To put it in the context of injustices perpetrated against gay people, marriage is not like the right to have sex with a consenting partner. Obergefell thus differed from Lawrence, but also from Loving v. Virginia (1967), which banned, again under penalty of criminal law, interracial cohabitation. Justice Thomas was correct to point this out in his dissent, which easily poked holes in Kennedy’s flim‐​flam. After all, a logical extension of Kennedy’s understanding of the fundamental right to marriage is that states are constitutionally prohibited from getting out of the marriage business altogether. That can’t be right.

Perhaps Kennedy’s synthesis can best be called “equal liberty”: a rejection of the conservative idea that people seeking protection for their intimate conduct must find it in the legislature—because such bodies can discriminate against minorities for reasons that aren’t civically salubrious. Regardless, these rulings have led some to call Kennedy the “first gay justice”—in the same way Bill Clinton was the “first black president.” It’s an odd appellation for the genteel country‐​club Republican—one who in 1980 ruled against three seamen discharged from the Navy for homosexual conduct—but it’ll stick until someone who’s openly gay reaches the high court.

Generally Against Racial Preferences

Moving to an area in which Justice Kennedy is in somewhat better alignment with judicial conservatives, on race‐​conscious state action he stays within equal‐​protection doctrine rather than escaping into a nebulous reading of liberty. Kennedy is no color‐​blind absolutist like Justice Scalia was, but he views with great skepticism laws that treat people differently based on race. He acknowledges, for example, that encouraging racial diversity—particularly in higher education—is a constitutionally legitimate goal. At the same time, until this year’s quixotic Fisher v. UT‐​Austin II,he’d never voted to uphold a policy that attempts to achieve that goal.

As Kennedy wrote in the school‐​busing case Parents Involved v. Seattle School District (2007), the government can’t force diversity on society by “[reducing] an individual to an as‐​signed racial identity for differential treatment.” “To be forced to live under a state‐​mandated racial label,” he continued, “is inconsistent with the dignity of individuals in our society.” But he wrote these things in a concurrence, declining to join the chief justice’s famous plurality opinion—“The way to stop discrimination based on the basis of race is to stop discriminating on the basis of race.”—because it was “too dismissive of the legitimate interest government has in ensuring all people have equal opportunity.” At the same time, he found Justice Breyer’s dissent too deferential to the government on this sensitive matter.

So it went in Kennedy’s vehement dissent from a 5–4 ruling upholding of an FCC policy that gave preferential treatment to minority‐​owned broadcasters in Metro Broadcasting v. FCC (1990). There he unfavorably compared the majority’s deferential review to Korematsu—the 1942 Japanese‐​internment case—and warned that equating race to broadcast content set the government on the “tortuous path to racial favoritism.” A decade later, in Rice v. Cayetano (2000), he wrote the opinion against race‐​based voting for the trustees of the Office of Hawaiian Affairs, because they rested on “on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters.” “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” (If that sounds familiar, it’s because last Thanksgiving, Kennedy stopped a similar election that an OHA contractor was running, which stay the full court would confirm 5–4.)

Metro Broadcasting and Rice set the stage for the major role that Justice Kennedy has played regarding affirmative action. In the 2003 University of Michigan cases, Gratz v. Bollinger and Grutter v. Bollinger, the court struck down the college’s policy of giving admissions points by race but upheld the law school’s use of race as one of several factors that create a “critical mass” of minorities. Justice O’Connor provided the key vote there, finding that the law school’s “individualized, holistic review” was sufficiently tailored to the valid state interest in educational diversity (at least for 25 years). Kennedy expressed frustration that the court didn’t apply real scrutiny and that basic protections against nefarious uses of race would be suspended for an arbitrary length of time. While sympathetic to the diversity goal, he labeled the concept of critical mass a “delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.”

That brings us to the Fisher saga, in which an applicant to the University of Texas sued the school for being rejected based on her race. In Fisher I (2013), the court seemed ready to throw out UT’s admissions program and put virtually out of reach the standard that universities have to meet to consider race in admissions. This result would have aligned perfectly with what seemed to be Kennedy’s view of racial preferences: feasible in theory, unconstitutional in practice. After sitting on the case the entire term, however, the court, writing through Kennedy, issued a meek 14‐​page opinion joined by all but Justice Ginsburg (with Justice Kagan recused) that told the lower court to be less deferential to the administrators’ representations. Joan Biskupic’s reporting later revealed that a vehement dissent that Justice Sotomayor circulated had persuaded Kennedy and the conservatives to pull back.

After the Fifth Circuit essentially rubber‐​stamped its previous opinion, the justices took the case again and the conventional wisdom was that in Fisher IIwe’d see Kennedy herald the beginning of the end of affirmative action. Instead, he simply seemed to tire of the case, deeming “good enough” the university’s attempt to justify the unjustifiable in order to be rid of it—deferring to educrats despite having previously told lower courts not to defer to them. I have a more sanguine view of this ruling than most of my fellow critics, if only because UT’s admissions program is unique in the country. But it was certainly Kennedy’s most surprising swing vote of his entire tenure in that role.

This is a good place to discuss Kennedy’s approach to statutory interpretation. There’s a reason that the justice is known for his constitutional writings: he’s better at—and seems to enjoy more—that sort of first‐​principles thinking than he is at trying to deduce often convoluted legislative or regulatory text. In the area of race, for example, it’s hard to reconcile his opinion in Ricci v. DeStefano (2009) with that in Texas Department of Housing v. Inclusive Communities Project (2015).

Ricci held that the City of New Haven violated Title VII of the Civil Rights Act of 1964 when it invalidated the results of a firefighter‐​promotion test because none of those who passed were black. Officials feared that if they certified the results, they would be sued under the controversial “disparate impact” theory of liability, but Kennedy found that rationale to be insufficient to justify “disparate treatment” of the denied white and Hispanic test‐​takers. In Inclusive Communities, meanwhile, he accepted that the Fair Housing Act allowed disparate‐​impact claims even without allegations of direct racial discrimination. Kennedy did provide good language for defense lawyers, but he kept the door open for the paralysis that developers, financial companies, and housing agencies face in sued‐​if‐​you‐​do, sued-if-you-don’t situations.

That’s but one statutory case—another is King v. Burwell (2015), which read federal healthcare exchanges as being “established by the state”—that makes you believe the third‐​hand anecdote I heard about Kennedy’s opening a window in his office and yelling out towards the Capitol, “what did you mean?”

Structure Means Liberty

Returning to firmer ground, Justice Kennedy has assembled a relatively solid record on the Constitution’s structural protections for liberty—though not one without soft spots. Especially after Windsor, commentators discovered that Kennedy has a vision of federalism that supports individual rights. But federalism existed long before progressives decided that it might be a useful tool in the battle over gay marriage. Separating powers vertically, not just horizontally, is a key part of the Founding project, as is the principle of dual sovereignty—the idea that the state and federal governments shouldn’t interfere in each other’s respective spheres.

Kennedy connected these theories in his concurrence in United States v. Lopez(1995), where the court struck down a federal law criminalizing possession of firearms near schools because it wasn’t a regulation of interstate commerce. “The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability,” he explained, “one between the citizens and the Federal Government; the second between the citizens and the States.” When the court continued its short‐​lived federalism revolution in United States v. Morrison (2000)—invalidating the federal Violence Against Women Act because, again, there was no interstate commerce—Chief Justice William Rehnquist’s majority opinion picked up on many of Kennedy’s points.

In between those two cases, Kennedy wrote majority opinions that limited Congress’s power to create new rights that have to be honored by the states (City of Boerne v. Flores, 1997) and struck down a federal law that stripped states of their sovereign immunity (Alden v. Maine, 1999). He also joined in two important rulings that enshrined the “anti‐​commandeering” principle—New York v. United States (1992) and Printz v. United States (1997)—which holds that the federal government can’t compel state officials to enforce federal law.

Kennedy also strongly supports the dormant commerce clause—reading the commerce clause as not only a “sword” by which Congress can facilitate interstate commerce, but as a “shield” that prevents states from passing laws that discriminate against out‐​of‐​state interests. “The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent,” he wrote in C & A Carbone, Inc. v. Town of Clarkstown (1994). In this, Kennedy is a stronger defender of economic liberty than Scalia and Thomas, who consider the dormant commerce clause to be inconsistent with the Constitution’s original meaning and thus a “judicial fraud.”

The clearest exposition of Kennedy’s federalism views came in United States v. Bond (2011), wherein the government bizarrely prosecuted a woman for violating the federal law that implements the international Chemical Weapons Convention. “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity,” he wrote for a unanimous court, it “protects the liberty of the individual from arbitrary power.”

Using the judicial power to stop government abuse was the theme of Justice Kennedy’s magnum opus in this area, the joint dissent he authored with Scalia, Thomas, and Alito in NFIB v. Sebelius (2012), otherwise known as the (first) Obamacare case, which concludes:

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

I was in the courtroom when the ruling was announced from the bench, including Kennedy’s dramatic summary of that dissent. The starkness of his language and passion in his voice could have made you mistake him for Scalia. It was his finest hour—and really makes you wonder how the same jurist could have signed onto Gonzales v. Raich (2005), which ratified the federal government’s power to regulate plants you grow in your backyard for your own use.

Undue Burdens

Justice Kennedy’s most famous judicial act—at least until Obergefell—was his switch from the tentative five‐​justice majority set to overrule Roe v. Wade(1972) to joining O’Connor and Souter to co‐​author the plurality opinion in Planned Parenthood v. Casey (1992) that upheld Roe’s “essential holding.” The trio crafted an “undue burden” test, which invalidates laws if they have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Kennedy has played the key role in applying this test in later cases, finding constitutional protection for a woman’s liberty to end her pregnancy but recognizing that, as Knowles put it, “this is a liberty that is bounded by important state interests . . . that permit the state to require the woman to exercise her liberty in an informed and responsible manner.”

Casey involved a challenge to five provisions of Pennsylvania’s abortion law, and only its three authors joined every part of the ruling—which struck down a spousal notification requirement but upheld the other rules. Tellingly, this was not an opinion about privacy rights, opening instead with “[l]iberty finds no refuge in a jurisprudence of doubt” and concluding with similarly lofty language. It’s this kind of rhetoric that gets Kennedy in trouble not just with conservatives who disagree with outcomes, but with originalists, textualists, and others opposed to judicial pontification. In what has become derisively known as the “sweet‐​mystery‐​of‐​life” passage, Kennedy explained: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Still, this grandiloquence was to be checked by certain boundaries. Although the court’s duty is “to define the liberty of all, not to mandate our own moral code,” abortion is a “unique act,” not one that a woman can make without considering the “consequences for others.”

Justice Kennedy’s bounded‐​liberty rubric was even more on display in the partial‐​birth‐​abortion cases, Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007). In Stenberg, a five‐​justice majority overturned Nebraska’s ban on partial‐​birth abortion because it wasn’t limited to late‐​term abortions and had no exception for maternal health. Kennedy dissented, finding that the law survived Casey’s level of scrutiny and that the majority “repudiates this understanding [of the state’s role in legislating on abortion] by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right.” In Gonzales, Kennedy wrote the opinion for a different five‐​justice majority—after Alito replaced O’Connor—upholding a federal partial‐​birth abortion ban that likewise lacked a maternal health exception.

After taking heat from conservatives for Casey, Kennedy now took heat from liberals for seeming to contradict his own Casey opinion—as well as for disingenuously reconciling Gonzales with Stenberg rather than recognizing that he would have to overrule Stenberg to achieve his desired result. There’s some validity to the former criticism—the word “liberty” is absent from his Gonzales opinion—and the latter can only be resolved by pointing to the higher legislative craftsmanship and technical precision in the federal law than in Nebraska’s.

Finally, this past term’s Whole Women’s Health v. Hellerstedt represents a sort of inverse Fisher II: for the first time in nearly 25 years (since Casey), Kennedy voted to strike down an abortion law, Texas’s rule that clinics must meet the safety standards of surgical centers and have physicians with nearby hospital‐​admitting privileges. Uncharacteristically, however, it was Breyer who wrote for the court here—even though Kennedy was the senior justice in the majority and so could have taken the opinion himself. Perhaps he was also tired of this case.

Thus we’re left with an outcome whereby abortion rights are now both stronger and narrower than before Kennedy got his hands on them; in this area more than any other, he can please no one.

So Is He a Libertarian?

Excellent on speech, generally good but frustrating on race and federal power, bad on statutory interpretation, and ugly on everything else—I’ve left out subjects like capital punishment—Kennedy is a sui generis enigma at the heart of the modern Supreme Court. The Colucci and Knowles books, and shorter writings, have helped us better understand the man’s “sweet mystery” by deconstructing his faint‐​hearted libertarianism, but at bottom his jurisprudence is a constant struggle to balance freedom and responsibility—ordered liberty, if you will.

This balancing of liberty against other concerns can sometimes amount to an imposition of Kennedy’s life philosophy rather than either being bound by ancient text or leaving the decision to the political process. That approach, to be sure, would be decidedly not libertarian. As Jeffrey Rosen once noted in a piece for the (old) New Republic, for example, Kennedy tends to use “dignity” and “equality” in a paternalistic way, not to enhance freedom. Kennedy may thus be better described as favoring good government—one with liberty as a positive and welcome externality but that requires his workmanlike beneficence to bring the majestic law to the people.

A recent extra‐​judicial development sheds more light: Kennedy’s 2013 release of a “reading list for young people” titled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty.” This list includes the following canonical choices: the Funeral Oration of Pericles, Magna Carta, Edmund Burke, the Declaration of Independence, the Gettysburg Address, Churchill’s speech after the Dunkirk retreat, Kennedy’s inaugural address, King’s “Letter from Birmingham Jail,” Reagan’s speech at the Berlin Wall. It also contains some less obvious but perfectly appropriate interdisciplinary picks: Marc Antony’s funeral oration in Julius Caesar, Zola’s “J’Accuse,” Longfellow’s “Midnight Ride of Paul Revere,” John McCrae’s “In Flanders Fields,” Charlie Chaplin’s closing speech in The Great Dictator (declining the dictatorship), Solzhenitsyn’s A Day in the Life of Ivan Denisovich.

But then it veers into selections that seem cribbed from an American Studies syllabus: Huckleberry Finn, Lou Gehrig’s “Farewell to Baseball,” Robert Frost’s “The Road not Taken,” Don McLean’s “American Pie,” Michael Crichton’s The Great Train Robbery,Reese Witherspoon’s commencement address in Legally Blonde. I might like to take that class, but I’m not sure what it has to do with how the commerce clause and Fourteenth Amendment secure and protect our liberties. What’s really interesting, and explains why Kennedy is no libertarian of any recognizable mold, is what’s absent. There’s no Hobbes or Locke, no Mill (On Liberty!), Hayek, Nozick, or even Rawls.

Those absences make sense, because Kennedy seems to view liberty from a different angle than would be expected from a classic liberal or modern libertarian—who would focus on the individual, the party whose rights are impacted by illegal government action. Kennedy approaches the issue from the viewpoint of society at large, the perpetrator of the contested law. His central concern, especially where the constitutional or statutory text is unclear, is whether it has a noble or dignified purpose. It’s why he told lawyers at an ABA conference that they should strive to achieve “honorable” outcomes.

There’s a definite parallel here to Kennedy’s gay‐​rights tetralogy. The constant theme in RomerLawrenceWindsor, and Obergefell is the ignoble motivation behind the laws at issue—the way they denigrate a certain class of people and thus devalue our democracy. That’s a Por­tia approach (her famous “quality of mercy” speech from Merchant of Venice is also on Kennedy’s list): The law should be opposed because it represents a character flaw in those who support and enforce it. And where Kennedy is concerned for the well‐​being of people affected, he’s concerned for their dignity, not necessarily their rights. A libertarian can’t accept a judicial philosophy that allows oppressive laws to stand if there’s a “noble purpose,” but Kennedy the bürgermeister has a certain sense of noblesse oblige. Look at Kennedy’s silent acquiescence in Raich and his opinion in National Treasury Employees Union v. Von Raab (1989), in which five justices—over dissents written by Scalia and Thurgood Marshall!—upheld the suspicionless drug test­ing of government employees against Fourth Amendment challenge. The only way to explain these votes is that Ken­nedy doesn’t see any nobility to drugs, so their users merit little constitutional protection even if they don’t hurt any­body and are confined to their homes.

This is why those who despair at the state of religious liberty post‐Obergefellhave nothing to fear from Kennedy. While the one paragraph he devotes to the issue is rather cursory and reads like an afterthought—and mentions advocacy and teaching but not “exercise”—I highly doubt that this mild‐​mannered Catholic would affirm the persecution of wedding vendors or force social‐​service organizations out of business. Indeed, he sided with Hobby Lobby inthat company’s fight for exemption from Obamacare’s contraceptive mandate and almost certainly would’ve done the same in the consolidated religious‐​nonprofit cases on which John Roberts engineered a punt this term, Zubik v. Burwell. It’s pretty clear that Kennedy sees a distinction between public and private action and hopes that both sides in the gay‐​marriage debate now respect each other’s liberties and recognize that we live in a pluralistic society.

Quo Vadis?

The perception that Justice Kennedy is a libertarian is purely a function of his role as the linchpin between the court’s progressive and conservative wings. A libertarian position is unlikely to prevail at the Court unless Kennedy agrees with it. Thus, any time there’s a libertarian “win,” he’s almost certainly in the majority—and his seniority and the fear that he might defect result in a fair number of those cases being assigned to him to write. But even as Kennedy is most often on the libertarian side in result, his reasoning is rarely libertarian: too many observers are outcome‐​sensitive and process‐​blind.

Now, if the idea of an enlightened magistrate deciding conflicts based on what he thinks is righteous, noble, and good, sounds uncomfortably familiar, it should come as no surprise that one of the first works Kennedy included on his reading list is the Allegory of the Cave. There Plato argues that it is the duty of “enlightened” philosophers—who alone among men have knowledge of what is truly good—to better the lot of the ignorant, out of pity if nothing else. This is the basis for Plato’s “philosopher kings,” who rule based on their love of honor.

But rules coming from a jurist’s special access to truth—whether empiric or moral—are incompatible with the republican state. We are thus inevitably drawn to the question of how faithful Kennedy is to the rule of law, which is a stronger measure of consistent, principled jurisprudence. The rule of law comprises values such as predictability and transparency; if a black box makes all of society’s key decisions, it’s not legitimate governance even if the results typically appeal to a majority.

Regardless of how convincing anyone’s explanation of his jurisprudence may be, if the general perception is that Kennedy decides cases in some inscrutable manner, whether based on policy preferences or some unrecognizable legal theory, he’s no better than that black box. Or, put another way, he becomes a sort of prophet who tries to convey the will of the Founding gods—which can only result in a decline in the congregation’s faith in the law.

Nevertheless, until someone replaces Justice Kennedy—who’s 80 but seems to be in excellent health—he will continue to fascinate and frustrate as he decides those cases that swing around him.

About the Author
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.